No. 2094 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Chester County at Nos. 133377 - 133477.
Janet W. Mason, Assistant Public Defender, West Chester, for appellant.
Robert J. Donatoni, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Spaeth, Cavanaugh and O'Kicki,*fn* JJ.
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Appellant was convicted by a jury of recklessly endangering another person and terroristic threats. On appeal he argues that he was unconstitutionally denied the right to waive a trial by jury and to be tried by a judge. The Commonwealth, however, asserts that it has an absolute right to a jury trial on the basis of 42 Pa.C.S. § 5104(c), which provides: "In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused." In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), the Supreme Court declared 42 Pa.C.S. § 5104(c) unconstitutional.*fn1 We therefore reverse and remand for proceedings consistent with that opinion.
Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides:
In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a
[ 311 Pa. Super. Page 261]
judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record and shall be in the following form:
IN THE COURT OF COMMON PLEAS OF THE COUNTY OF . . . CRIMINAL ACTION NO. . . . OF . . . 19 . . . . COMMONWEALTH OF PENNSYLVANIA